THE HAGUE, Netherlands (CN) – The International Court of Justice wrapped up the first round of hearings Tuesday in a case that finds Pakistan and India at odds with the conviction of a suspected spy.
A Pakistani military court convicted Kulbhushan Sudhir Jadhav (also spelled Yadav) and sentenced him to death in April 2017 after finding him guilty of “espionage and sabotage activities against Pakistan.” India took Pakistan to the United Nations court, claiming Pakistan violated the Vienna Conventions in its treatment of Jadhav.
Pakistan claims its authorities arrested Jadhav in Balochistan, a Pakistani province which shares a border with Afghanistan and Iran and where a number of separatist groups operate. Jadhav was there in the employ of the Indian Navy to stir up malcontent against the Pakistani government, according to Pakistan. But India says Jadhav had retired from the Navy and was kidnapped from Iran while on business.
The case before the judges at the International Court of Justice focuses on whether or not Pakistan denied consular rights to Jadhav under the Vienna conventions, which both countries have signed.
Oral arguments began with a bit of a surprise, as court president Abdulqawi Ahmed Yusuf announced that Tassaduq Hussain Jillani, as ad-hoc judge appointed to represent Pakistan, was unable to attend the hearing. Yusuf appeared to be somewhat flustered by the deviation, dropping papers from his lectern during the announcement. It was later confirmed that Jillani had fallen ill.
Jillani, the former chief justice of Pakistan, was appointed to the court under a court rule permitting the appointment of a judge to represent a nation which is a party in a dispute if the opposing party has a permanent representative. The international court has a 15-judge panel which includes Dalveer Bhandari, an Indian national.
On Monday, the first day of the hearing, joint secretary for India’s ministry of external affairs Deepak Mittal opened on behalf of India. After thanking the court for hearing the case, Mittal welcomed Harish Salve to continue making India’s case.
Before proceedings began, however, Mittal refused to shake hands with Pakistan attorney general Anwar Mansoor Khan, instead making a “namaste” gesture in response to Khan’s outstretched hand.
Salve, a former solicitor general of India, told the court that Pakistan’s case was “strong on rhetoric and weak on fact.” Salve outlined the history of the case as India saw it and focused his arguments on what he called violations of the Vienna Conventions.
In particular, Salve argued that Pakistan had violated Article 36 of the Vienna Conventions, which states “consular officers shall have the right to visit a national of the sending state who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation” and that the consulate should be notified of a citizen’s arrest “without delay.”
Pakistan did not provide consular access to Jadhav, Salve told the court, denied the man the opportunity to select a lawyer to aid in his defense and did not provide India with relevant documents relating to Jadhav’s trial – despite India’s 13 reminders to the Pakistani government.
He brushed off claims made by Pakistan in written arguments that the issues of Jadhav’s passport and video confessions should be addressed since the International Court of Justice is “not an appellate court” and can’t review the facts in the case, but it must focus on the issue of consular access.
Pakistan says Jadhav was traveling on a false passport under the name Hussain Mubarak Patel, which he had used to enter Pakistan a number of times previously. The Pakistani government has released videos of Jadhav purporting to confess to espionage, which India says were coerced.
Salve also blasted the military court that convicted Jadhav as not “independent, impartial or competent,” the baseline for a fair judicial proceeding according to the United Nations and other bodies. Jadhav has been sentenced to death by a military court in Pakistan, which have been criticized for being political. Salve noted Pakistani citizens have brought complaints against the military courts and that in many other nations, including India, civilians are not tried in military courts.
India called for the court to declare the Pakistani court’s verdict unlawful and to order Pakistan to release Jadhav immediately.
“There is no domestic resolution for violating Article 36,” Salve said, adding India does not want the U.N. court to request Pakistan to review and reconsider the verdict against Jadhav.
On Tuesday, Khan opened the argument for Pakistan by expressing concern over the lack of an ad hoc judge and requested the court to appoint someone else. The international court denied the request and ordered Pakistan to make its case.
After an opening statement, Pakistani counsel Khawar Qureshi took over. A resident of the United Kingdom, Qureshi wore a peruke – the traditional wig worn by lawyers practicing in English courts – during his statements.
Qureshi said India has pursued a policy of destroying Pakistan since 1947, when Indian independence led to the creation of Pakistan, and that India brought its case to defend a terrorist. Qureshi said Jadhav was, in fact, spying on behalf of India, as is made clear by the videotaped confessions and the fake passport Pakistan claims Jadhav was using.
According to Qureshi, the burden to disprove the confessions and the passport falls on India, which it did not adequately do. He further accused India of doctoring military reports it submitted to the court.
Qureshi put forth a nine-point rebuke of India’s case, centered on the notion Jadhav was spying on behalf of India and thus couldn’t be expected to receive unrestricted consular access.
“Customary international law provided for an exception to consular access in the case of an individual reasonably suspected of espionage,” Qureshi said, since allowing consular access would have given Jadhav the opportunity to share the fruits of his spying with India.
Tensions between India and Pakistan are already high, with the trial coming only five days after the Pulwama terror attack in which 40 Indian police personnel were killed by a car bomb in Jammu and Kashmir in India. Pakistani terrorist group Jaish-e-Mohammed has claimed responsibility for the attack.
Hearings continue until Thursday, with both countries receiving 90 minutes to respond to arguments made Monday and Tuesday.
The International Court of Justice is expected to issue its ruling sometime this summer.